FCC Relies on Fallacies, Not Evidence, in Special Access Order

How does the FCC justify taking action without an adequate evidentiary basis? By relying on a series of fallacies to provide an aura of evidence without actually having any. That’s a problem for an agency that wants to be seen as fact-based and data driven. Fallacies are like zeros: No matter how many you have, you still have nothing.

Yesterday the Federal Communications Commission (FCC), our government’s communications industry experts, issued an order that would flunk an introductory college course in logic. Despite issuing multiple data requests, in October 2011, the FCC told the DC Circuit Court of Appeals that it “lacked a sufficient evidentiary record” to document claims that its “pricing flexibility rules” governing special access were flawed. The FCC’s evidentiary record hasn’t improved, but it suspended its pricing flexibility rules on a so-called “interim” basis anyway while it tries to figure out how to obtain the data it needs to do a transparent, data based analysis.

How does the FCC justify taking action without an adequate evidentiary basis? By relying on a series of fallacies to provide an aura of evidence without actually having any. That’s a problem for an agency that wants to be seen as fact-based and data driven. Fallacies are like zeros: No matter how many you have, you still have nothing.

Consider these fallacies:

Naked Assertion: A fallacy in which a premise in an argument is assumed to be true merely because it says it is true.

In his separate statement, Genachowski says the FCC is suspending its rules “Based on the record and the undisputed finding that legacy regulations are not working as intended.” What undisputed finding? Commissioners McDowell and Pai disputed this finding in their dissenting statements (here and here), because the FCC lacks sufficient evidence to determine whether or not the rules are working as intended.

Loaded Question: A fallacy in which someone asks a question that presupposes something that hasn’t been proven or accepted by everyone involved.

Genachowski relies on this fallacy to attack the dissenting Commissioners. He says, “My colleagues’ dissents struggle to explain why the Commission should ignore the record and maintain a broken system,” which presupposes the system is “broken.” Genachowski also says the “dissenters have no answer to the harm their approach would cause,” which presupposes the pricing flexibility rules are causing “harm.” But, as their dissenting statements demonstrate, McDowell and Pai don’t believe the rules are broken or causing harm.

Shifting the Burden of Proof: According to the rules of logic, the burden of proof is always on the person who is asserting something. This fallacy shifts the burden of proof to the person who denies or questions the assertion.

The “evidence” regarding special access hasn’t changed since Genachowski testified under oath, “there is no point in doing something” about special access “that is not based on facts and data.” The only thing that changed was the burden of proof. Rather than require the proponents of special access regulation to prove market failure with solid evidence, the FCC assumed market failure based on fragmented, outdated data regarding colocation in the wire centers of certain local exchange carriers in select geographic areas. It “acknowledge[d] that this evidence is limited,” but nevertheless believed the evidence “suggests . . . the accuracy of the use of collocations as a proxy for actual or potential competition warrants further investigation.” Based on this evidence warranting further investigation, the FCC presumes its pricing flexibility rules “have not worked as intended.”

In effect, the FCC shifted the burden of proof by relying on flimsy evidence to support its assertion while rejecting countervailing evidence as “unreliable.”

The saddest fallacy of all is Genachowski’s assertion that this order will promote broadband competition. Encouraging potential competitors to lease narrowband special access lines from incumbent telephone companies at government-regulated rates won’t promote “broadband” or provide the benefits of free market competition. Making special access lines available at government subsidized rates will only encourage potential competitors to become reliant on the services of the incumbents. Why should competitors build innovative, ultra high-speed fiber networks that would provide real competition when the government is giving them a break on copper wire?